The killing of legal abortion

Clutching a Bible and a crucifix, Christal Hutchison kneels on the footpath in warm soft rain before the Red River Women's Clinic in Fargo, the only abortion clinic in all of North Dakota, and quietly recites the Lord's Prayer.

Hutchison, who is 58, does not interrupt her incantation as a young couple stride to the door, heads down, his right arm firm over her hunched back as though they are battling a blizzard together.

Anti-abortion demonstrators at a Washington March for Life rally. Photo: Reuters

Standing in the doorway is Caitlin O'Connell, one of the clinic's escorts. It is her job to aid patients should they be harassed as they make for the entrance. She casts an eye over Hutchison and a handful of other protesters bearing anti-abortion placards and holds the door open, welcoming the couple in a warm but businesslike manner.

It is all over in a few seconds, but it is not always this way. Sometimes convoys of protesters arrive from out of state and in the past others have tried to intercept the women as they enter to hand them prayer cards or images of dismembered foetuses.

Legislation passed by Bill Clinton that makes it a federal offence to block the women's path has made O'Connell's job easier, but occasionally the crowd has turned ugly and in another location a clinic has been firebombed.

Today the puddled pavement between Hutchison and O'Connell is in a very real sense the front line in the escalating war against legal abortion in the United States.

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Opponents of abortion are energised and many believe they are closer to a ban today than at any other time since the Supreme Court recognised the constitutional right to abortion with its Roe v Wade decision 40 years ago.

''It is axiomatic, it is the story of our times, it is the thing every pro-lifer knows: we're winning this battle,'' Tom Hoopes, a professor of communications at Benedictine College in Atchison, Kansas, wrote on the blog CatholicVote.org earlier this year.

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On Wednesday, the Republican-controlled US House of Representatives passed an anti-abortion bill largely along party lines. Should it become law, it would ban abortion after 20 weeks of pregnancy, which some have argued is when foetuses are capable of pain. (The science on this is murky at best.) The law contravenes Roe v Wade, which specifies that abortion is legal until a doctor determines that a baby is viable outside the womb, normally between 22 and 24 weeks.

Until a last-minute change, the bill would have made no exceptions for potential impacts on women's health, nor for victims of rape or incest, and most of the Republicans who voted against it did so because they did not think it was tough enough.

Proponents of the bill said it was a response to the recent trial of Kermit Gosnell, a doctor who ran an abortion clinic in which he was found to have killed live babies after birth. He has since been found guilty of murder and has begun a life sentence. Pro-choice activists argue it is disingenuous to conflate Gosnell's crimes with legal abortion.

Marjorie Dannenfelser, president of the Susan B. Anthony List, an anti-abortion political action committee, called the vote ''historic''.

In the end, though, the passing of the Pain Capable Unborn Child Protection Act was political theatre. The bill has no chance of clearing the Democratic majority in the Senate. Even if it scraped through, the President would veto it.

But the charade serves political purposes. Voting for such a law allows House Republicans who face midterm primaries and elections next year to say they remain in lockstep with Tea Party orthodoxy. This is the same reason House Republicans have pointlessly voted to repeal Obamacare 36.

But problematically for Republicans, votes like this also give ample opportunity for the party's outliers to make comments that alienate it further from moderate voters. During the presidential election last year, such comments included the observations from Republican candidates that in the event of ''legitimate'' rape the ''female body has ways to try to shut that whole thing [pregnancy] down'', and that if a child was conceived in rape ''that it is something that God intended to happen''.

This sentiment was faintly echoed earlier this month when the bill's author, Republican Trent Franks from Arizona, said, ''incidents of rape resulting in pregnancy are very low''.

His cause was not assisted by his colleague from Texas, Michael Burgess - a former obstetrician and gynaecologist - who argued during a hearing on the bill that abortion should be banned even earlier, at 15 or 16 weeks because viewed via a sonogram male foetuses appeared to masturbate. ''If they feel pleasure, why is it so hard to believe that they could feel pain?'' he reasoned.

In truth, the real battle against abortion is being fought - and in many jurisdictions being won - in the states.

State governments are passing laws restricting access to abortion at a historic rate. Many of the laws are designed to abide by the letter of Roe v Wade while undermining its spirit. To do so, these laws use the protection of another Supreme Court decision, Planned Parenthood v Casey, the first significant post-Roe legal victory by abortion opponents. In this 1992 decision, the Supreme Court found that while states may not prohibit abortion, they may regulate it.

As the campaign against legal abortion has picked up steam, conservative politicians have become increasingly adept at regulating abortion clinics to death.

As soon as one state develops a law that succeeds in restricting abortions, similar laws quickly pop up elsewhere.

One popular regulation makes it compulsory for doctors working in clinics to secure ''admitting privileges'' in local hospitals. Because many doctors travel long distances to work in clinics, they are often ineligible to get rights to admit patients at local hospitals. Last year, the Volunteer Women's Medical Clinic in Knoxville, Tennessee, closed down after 38 years for this reason.

Another law forces clinics to abide by increasingly tough architectural and zoning regulations. Clinics that administer only medicinal abortifacients have been required to establish themselves as full surgical centres; others have been ordered to knock down and rebuild corridors and fire escapes.

Laws like this have proved particularly effective because they can be described as measures to protect women while they whittle away at the availability of abortion and they do not tend to attract headlines that might prompt a backlash.

''Is that the kind of thing that will rally voters?'' Cristina Page, author of the book How the Pro-Choice Movement Saved America, told Time magazine earlier this year. '''We're not going to expand these hallways to be 5 ft. wide!' is not a compelling message. The villain is now in the fine print.''

Other impediments include bans on juveniles receiving abortions without parental consent, bans on the use of telemedicine to prescribe abortifacients, bans on public funding for abortion, introducing mandatory waiting periods and the development of detailed information packs to be given to those seeking abortions.

(In North Dakota, for example, patients must be told, ''North Dakota law defines abortion as terminating the life of a whole, separate, unique living human being.'')

Another law that has appeared in 16 states dictates that women must have an ultrasound before they have an abortion. When Virginia Governor Bob McDonald sought to introduce a regulation last year that would have made women undergo the procedure with a vaginal probe in the early weeks of their pregnancy, a public outcry saw that law softened but passed.

The compounded impact of the restrictions is difficult to accurately gauge, though the figures that do exist are startling.

The most recent surge in the pro-life movement began with the 2010 mid-term elections, when Tea Party-affiliated conservatives won power in local, state and federal elections.

While the Tea Party movement was considered to be primarily concerned with shrinking taxes and cutting debt when it first erupted, it was always a movement of social conservatives, says Professor Scott Lemieux, a political scientist at the College of Saint Rose.

Sure enough, no sooner had the Tea Party politicians moved into their new offices than they began drafting laws to restrict abortions. According to the Guttmacher Institute, a non-profit institute that tracks access to abortion around the world, in 2011 92 various restrictions against abortion made law in 24 states, shattering the previous record of 34 in 2005.

The following year another 43 restrictions were imposed in 19 states and so far this year 32 provisions have been adopted by 14 states. The number of abortion providers fell from 2908 in 1982 to 1793 in 2008.

According to a recent Washington Post analysis, the wave of restrictions has seen abortion effectively banned in 15 states.

To many this would appear to be a considerable success, but as Lemieux explains, the forces opposing abortion are not co-ordinated, and some pro-life politicians and activists now appear to be growing frustrated with ''incrementalism'' and are gunning for the holy grail, the effective repeal of Roe v Wade.

This brings us back to North Dakota. In March this year, the state government introduced the most restrictive abortion laws in the nation, one banning abortion after six weeks of pregnancy, the earliest that foetal heartbeat can be detected, the other prohibiting the procedure because a foetus has a genetic defect, such as Down syndrome.

Doctors performing an abortion under these circumstances after August 1 could face a felony charge punishable by up to five years in prison and a $5000 fine. The laws were among seven abortion restrictions passed in North Dakota.

What was so significant about the six-week ban was that it was transparently designed to fall foul of Roe v Wade and provoke a challenge that its backers hope will eventually find its way back to the Supreme Court.

''It's a good day for babies,'' said Bette Grande, a Republican from Fargo who introduced both bills. ''Whether this is challenged in court is entirely up to the abortion industry. Given the lucrative nature of abortion, it is likely that any statute that reduces the number of customers will be challenged by the industry.''

Professor Lemieux says this direct challenge to Roe is strategically risky, and he has detected a split in the pro-life movement caused by it.

Because the US Supreme Court has discretion over the cases it considers, he believes the current bench would simply decline to hear such a case, while lower courts would simply overturn the law. Each time such laws are killed off, the precedent becomes further entrenched, he says.

And even if the Supreme Court was eventually provoked into taking on such a case, it would likely back its earlier decisions under its current make-up.

But should the make-up of the court change under a new Republican president after 2016, ''all bets are off'', says Lemieux. Roe could be scrapped.

Back on the street in Fargo, Christal Hutchison says she does not follow politics. She comes each Wednesday, the day the clinic performs abortions, to pray for the dead babies, their mothers and the staff.

''God has been asking me to do this,'' she explains. ''You, not somebody else, you need to do something,'' was the message she heard.

Nearby Ron and Dorothy Koester stand with a placard, as they have each week since Ron retired from the sugar plant.

''Two people enter that door, but only one leaves,'' says Ron of the patients.

Each week the Koesters arrive early in the morning and head upstairs into a small office block where local Catholic parishes have established a chapel. There is a little office, facilities for tea and coffee, and in a spare room the regular protesters store their placards. After Mass they head downstairs to wait for the patients.

''We try to tell them there are better options, that they don't have to do this,'' says Ron. ''We don't condemn them, we are just trying to give them that one last chance.''

Sitting in the foyer at the end of the day, the clinic escort, Caitlin O'Connell, and its director, Tammi Kromenaker, roll their eyes in unison at the suggestion that the protesters are present out of concern for the women. Kromenaker says they have no effect but to add to the anxiety of her patients.

Kromenaker, who is 41 years old, was born within a year of Roe v Wade and she has worked with the clinic since she graduated from college 20 years ago. In that time, public support for the Roe v Wade decision has remained nearly constant. Last year a poll by Pew Research Centre found more than six in 10 people say they would not like to see it completely overturned, a finding that has changed little from surveys conducted 10 and 20 years ago.

But Kromenaker says over the years she has seen the energy of the pro-life movement rise and fall and, after Obama's election, rise again.

''You can see how that threatened a lot of social conservatives, people who wish they could go back to the father-knows-best 1950s.'' She believes a generation of people have forgotten what life was like before abortion was made legal.

Asked if she feels threatened being the public face of abortion in a small conservative town, Kromenaker says she takes sensible precautions - her children use their stepfather's surname, her phone number is silent, she varies her route to work.

But thinking of George Tiller, the doctor murdered in 2009, she says in a matter-of-fact tone, ''You never know. You can take all the right precautions and still get shot in the head at church.''